The jury trial involving the South Dakota Agricultural Food Products Disparagement Act continues today, beginning its fourth week of courtroom action in Elk Point, SD.
Dakota Dunes, SD-based Beef Products Inc. (BPI) is suing Disney-owned ABC Television and reporter Jim Avila under the Disparagement Act for calling its beef product “pink slime” on more than 350 occasions during a 27-day period in 2012.
Under the Disparagement Act, were BPI to prevail, its $1.9 billion claim against ABC could be tripled to a breath-taking $5.7 billion. The overall narrative was known before the trial began on June 5. After Avila and others on ABC News aired and posted a series of reports on “lean finely textured beef,” repeatedly calling it “pink slime,” and keeping tallies on which retailers still sold it, BPI experienced an immediate and dramatic loss of sales that resulted in the closure of three of its four production facilities and layoffs of about 750 workers.
How this all stacks up with the facts and law has been left to a Union County, SD, jury and four alternates. Those 11 women and five men are being asked to be ready to decide when the trial, scheduled for eight weeks, finally comes to an end. They will have only the exhibits and their memories to go on. The judge has allowed note-taking, so long as notes are held by the County Clerk when court is not in session. At the end of the trial, the jurors who did take notes will have the option of taking them home or having them destroyed by the clerk.
The trial in the newly constructed basement courtroom continues today with BPI’s Chicago attorneys still putting on their case. Winston & Strawn attorneys Dan K. Webb and J. Erik Connolly have a sort of layer cake approach going, while still having to defend against ABC’s lead attorney Dane H. Butswinkas of the Williams & Connolly firm in Washington D.C.
Last week, the beef-packer’s legal team began with Rich Jochum, BPI’s corporate administrator, still on the stand. His job was to testify about how outrageous the ABC reports were from the company’s standpoint, and how depressing it was to be forced to lay off employees, including some who’d worked for BPI for 30 years. Jochum said Avila was taking credit for it.
Butswinkas, however, brought up documents showing BPI lost customers before March 7, 2012, when ABC’s reports began. The ABC attorney also pointed out that USDA’s Food Safety and Inspection Service (FSIS) does not support referring to lean finely textured beef (LFTB) as meat because of the low-temperature rendering and centrifugation used in its production.
Jochum and Butswinkas also sparred over BPI’s loss sales prior to 2012. The ABC attorney asked the witness if there was concern about 60 percent of BPI’s business being “gone” prior to February 2012. Jochum said that kind of customer turnover is an opportunity and the trend was up going into March 2012.
After Jochum’s lengthy testimony, BPI’s attorneys presented a series of video depositions from beef industry players who, for the most part, added their voices to those who feel that ABC did an injustice to BPI with its “pink slime” reports.
National Beef continued to buy LFTB from BPI, but had to reduce its purchases by 80 percent. The company’s vice president for business planning and analysis, said: “It was devastating. Not only losing our ability to sell LFTB in our ground beef, we also lost the ability to sell our trimmings to BPI to make it. We ended up having to render a lot more.
After this week, the jurors will get a four-day break from the trial with the courthouse closed and the trial in recess until July 5.
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